[Federal Register Volume 71, Number 160 (Friday, August 18, 2006)]
[Rules and Regulations]
[Pages 47744-47747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-VA-0010; FRL-8211-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Amendments to Existing Regulation Provisions Concerning 
Maintenance, Nonattainment, and Prevention of Significant Deterioration 
Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the Commonwealth of Virginia. These revisions consist of 
amendments to state regulation provisions concerning maintenance, 
nonattainment, and prevention of significant deterioration (PSD) areas 
for incorporation into the Virginia SIP. EPA is approving these SIP 
revisions in accordance with the Clean Air Act (CAA or Act).

DATES: Effective Date: This final rule is effective on September 18, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-VA-

[[Page 47745]]

0010. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, 
some information is not publicly available, i.e., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy for 
public inspection during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Virginia Department of Environmental Quality, 629 
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 12, 2006 (71 FR 33669), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of formal SIP revisions submitted by the Commonwealth of 
Virginia on August 15, August 17, August 19, September 28, and October 
3, 2005. These SIP revisions consist of amendments to existing 
regulation provisions concerning maintenance, nonattainment, and PSD 
areas found in 9 VAC 5, Chapter 20 of Virginia's regulations for the 
Control and Abatement of Air Pollution.

II. Summary of SIP Revisions

    The August 15, 2005 SIP revision amends 9 VAC 5-20-203, Maintenance 
areas, 9 VAC 5-20-204, Nonattainment areas, and 9 VAC 5-20-205, PSD 
areas, to reflect the redesignation of the Hampton Roads ozone 
nonattainment area to attainment of the 1-hour ozone national ambient 
air quality standards (NAAQS) (62 FR 34408, June 26, 1997).
    The August 17, 2005 SIP revision amends 9 VAC 5-20-203, Maintenance 
areas, 9 VAC 5-20-204, Nonattainment areas, and 9 VAC 5-20-205, PSD 
areas, to reflect the redesignation of the Richmond ozone nonattainment 
area to attainment of the 1-hour ozone NAAQS (62 FR 61237, November 17, 
1997).
    The August 19, 2005 SIP revision amends 9 VAC 5-20-204, 
Nonattainment areas, and 9 VAC 5-20-205, PSD areas, to reflect the 
first repeal of the 1-hour ozone NAAQS (63 FR 31087, June 5, 1998), 
which removed the White Top Mountain area from the list of 1-hour ozone 
nonattainment areas and from the list of PSD areas. The White Top 
Mountain area was later reinstated as a rural transport (marginal) 
ozone nonattainment area under the 1-hour ozone standard on July 20, 
2000 (65 FR 45182), as a result of a 1999 court decision challenging 
EPA's previous determinations on the applicability of the 1-hour ozone 
standard.
    The September 28, 2005 SIP revision amends 9 VAC 5-20-204, 
Nonattainment areas, and 9 VAC 5-20-205, PSD areas, by incorporating 
the new 8-hour ozone nonattainment areas into the list of Virginia's 
nonattainment areas found in 9 VAC 5-20-204, and revising the list of 
PSD areas found in 9 VAC 5-20-205. Because the 1-hour ozone standard 
was revoked, effective June 15, 2005, the revision also adds a 
provision to 9 VAC 5-20-204, which removed the severe area program in 
the Northern Virginia ozone nonattainment area as the area was 
constituted under the 1-hour standard. Because the severe area program 
imposed more stringent requirements than those required under section 
184 of the CAA in that area, Virginia did not need to have a separate 
new source review (NSR) program meeting the section 184 requirements.
    EPA proposed approval of this revision (71 FR, 33670, June 12, 
2006), contingent upon the Commonwealth of Virginia implementing the 
NSR program required under section 184 of the CAA in Virginia's portion 
of the Ozone Transport Region (OTR). On July 13, 2006 (71 FR 39570), 
EPA published a final rulemaking implementing the NSR program required 
under section 184 of the CAA in Virginia's portion of the OTR.
    It should be noted that since the September 28, 2005 SIP revision 
submittal, EPA has redesignated the Fredericksburg (70 FR 76165, 
December 23, 2005) and Shenandoah National Park (71 FR 24, January 3, 
2006) areas to attainment of the 8-hour ozone NAAQS.
    Other specific requirements pertaining to 9 VAC 5, Chapter 20 of 
Virginia's regulations for the Control and Abatement of Air Pollution 
and the rationale for EPA's proposed action are explained in the NPR 
and will not be restated here. No public comments were received on the 
NPR.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege''' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law,Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts * * *.'' The opinion 
concludes that ``[r]egarding ( 10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements

[[Page 47746]]

imposed by Federal law,'' any person making a voluntary disclosure of 
information to a state agency regarding a violation of an environmental 
statute, regulation, permit, or administrative order is granted 
immunity from administrative or civil penalty. The Attorney General's 
January 12, 1998 opinion states that the quoted language renders this 
statute inapplicable to enforcement of any Federally authorized 
programs, since ``no immunity could be afforded from administrative, 
civil, or criminal penalties because granting such immunity would not 
be consistent with Federal law, which is one of the criteria for 
immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the amendments to existing regulations pertaining 
to nonattainment, maintenance, and PSD areas found in 9 VAC 5 Chapter 
20, submitted on August 15, 17, 19, September 28, and October 3, 2005, 
as revisions to the Commonwealth of Virginia SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 (Protection of Children 
from Environmental Health Risks and Safety Risks( (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
`major rule' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 17, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action, approving amendments to Virginia's 
existing regulation provisions concerning maintenance, nonattainment, 
and PSD areas, may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: August 8, 2006.
Donald S. Welsh,
Regional Administrator, Region III.


0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Chapter 20, sections 5-20-203, 5-20-204, and 5-20-205 
to read as follows:

[[Page 47747]]

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                                                                  Explanation
   State citation  (9 VAC 5)          Title/subject            State       EPA approval date      [former SIP
                                                          effective date                           citation]
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                                                  * * * * * * *
                                     Chapter 20 General Provisions [Part II]
 
                                                  * * * * * * *
5-20-203.......................  Air Quality Maintenance   01/01/98, 04/  08/18/06 [Insert
                                  Areas (AQMA).                    01/98   page number where
                                                                           the document
                                                                           begins].
5-20-204.......................  Nonattainment Areas....   01/01/98, 04/  08/18/06 [Insert
                                                           01/98, 01/01/   page number where
                                                           99, 08/25/04,   the document
                                                                01/12/05   begins].
5-20-205.......................  Prevention of             01/01/98, 04/  08/18/06 [Insert
                                  Significant              01/98, 01/01/   page number where
                                  Deterioration Areas.      99, 08/25/04   the document
                                                                           begins].
 
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 [FR Doc. E6-13615 Filed 8-17-06; 8:45 am]
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